Tinker v. Sudbury (City), 2015 HRTO 369

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Tinker

Applicant

-and-

City of Greater Sudbury

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: March 23, 2015

Citation: 2015 HRTO 369

Indexed as: Tinker v. Sudbury (City)

1This Application filed on September 10, 2014, alleges discrimination with respect to employment on the basis of age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Response was filed on December 1, 2015. The applicant did not file a Reply to the Response.

3On December 17, 2015, the respondent filed a Request for Summary Hearing. The respondent requested that the Tribunal hold a summary hearing in order to determine if the Application should be dismissed as having no reasonable prospect of success.

4A Case Assessment Direction dated January 26, 2015 directed the applicant to file a response to the Request within seven days. The applicant has not done so.

5On March 10, 2015, the applicant filed a Request to Withdraw his Application.

6On March 12, 2015 the respondent filed a Response to the Request to Withdraw.

7The respondent is concerned that the applicant’s Request to Withdraw does not provide reasons for the withdrawal and that the applicant may file a new Application based on the same alleged facts. The respondent submits that a Request to Withdraw should not be permitted to be used as a means to improve one’s Application after receiving legal advice. The respondent submits that it would be unfair to allow the applicant to make a fresh Application at this point after the respondent has filed a Response, requested a Summary Hearing and incurred costs associated with taking these steps. The respondent submits that it would be contrary to the Tribunal’s mandate to resolve Applications in the most fair, just and expeditious manner to grant the Request to Withdraw without seeking an undertaking from the applicant that he will not file a new Application based on the same alleged facts.

8Rule 10.5 of the Tribunal’s Rules of Procedure states that:

where a Response to the Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine.

9In D.R. v. Upper Grand District School Board, 2011 HRTO 1751, the Tribunal allowed the applicant to withdraw without conditions, commenting as follows (at para 4):

The Tribunal appreciates the respondents’ concerns about the time and resources they have devoted to responding to this Application. Nonetheless, I see little to be gained by an inquiry at this stage into whether the circumstances of this Application and the possible motivation for the applicant’s decision to seek to withdraw the Application should lead to the sort of order sought by the respondents. If the applicant seeks to re-file the same allegations in another application, the respondents may raise their objection at that time and may request that the Tribunal refuse to consider a new application.

10In McDermott v. Ross, 2013 HRTO 1576, the applicant sought to withdraw his Application two days before the scheduled hearing. In response, the respondent sought an order requiring the applicant to sign a release, an award of costs, and that the record reflect that the respondent vehemently denied any and all allegations of wrongdoing and that the applicant’s accusations were never substantiated. The request for these terms was denied by the Tribunal and permission to withdraw was permitted.

11Similarly, the respondent in this Application is asking the Tribunal to impose terms on the withdrawal of the Application. The Tribunal has no power to compel a party to continue to pursue an Application. The applicant has decided not to pursue his allegations against the respondent. To force the applicant to state his intentions for withdrawing would require the parties to incur further time and resources. Should the applicant file a new application based on the same alleged facts, the respondent could raise its objections at that time.

12Accordingly, I see no reason to depart from the Tribunal’s existing case law under Rule 10.5, and I permit the applicant to withdraw his Application. The Tribunal’s file will be closed.